Investment Policy Brief 14, March 2019
Building a Mirage: The Effectiveness of Tax Carve-out Provisions in International Investment Agreements
The present policy brief analyses the language of taxation carve-out provisions incorporated in International Investment Agreements (IIAs), and its effectiveness with regards to restricting the protection and dispute settlement provisions of IIAs only to non-tax-related claims. It illustrates that even in cases where such carve-out provisions have been incorporated into IIAs, the broad language and lack of clarity in the drafting of such provisions have effectively allowed Investor-State Dispute Settlement (ISDS) tribunals to scrutinize tax measures adopted by States, and even determine that such measures resulted in a breach of State’s obligations under the agreement. It makes recommendations on how States could effectively implement such carve-outs when negotiating, reforming or drafting new international investment agreements.
This brief is part of the South Centre’s policy brief series focusing on international investment agreements and experiences of developing countries.
While the reform process of international investment protection treaties is evolving, it is still at a nascent stage. Systemic reforms that would safeguard the sovereign right to regulate and balance the rights and responsibilities of investors would require more concerted efforts on behalf of home and host states of investment in terms of reforming treaties and rethinking the system of dispute settlement.
Experiences of developing countries reveal that without such systemic reforms, developing countries’ ability to use foreign direct investment for industrialization and development will be impaired.
The policy brief series is intended as a tool to assist in further dialogue on needed reforms.
*** The views contained in this brief are attributable to the author/s and do not represent the institutional views of the South Centre or its Member States.
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This article was tagged: Bilateral Investment Treaties (BITs), Investment Agreement, Investment Law and Policy, Investment Policy Briefs, Investor-State Dispute Settlement (ISDS) System, Tax Carve-Out, Tax law, Tax Policy